Ce que signifierait un acquittement de R.Elmer

What would an acquittal of Rudolf Elmer related to charges of Swiss banking secrecy violation by Swiss federal judges mean for the Swiss banking industry in general?

All offshore vehicles (trusts, companies, partnerships etc.) holding a Swiss bank account would no longer be protected outside Switzerland, even though the information of the Swiss bank accounts is sent to Cayman, Jersey, Delaware etc. for accounting and administration purposes. The information would be accessible for foreign authorities from the point in time when the information on the Swiss Bank account crosses the Swiss border. The business model of using offshore jurisdictions like Cayman, Jersey UK, Isle of Man etc. to set up trusts, companies, and partnerships would not work anymore because the Swiss judicial system will no longer be able to protect the information – they will only be able to do that if the bank account is based in Switzerland.

An acquittal of whistleblower Rudolf Elmer would be a real setback for Swiss banking secrecy. However, jurisdictions like Jersey UK, the Isle of Man, Monaco, Hong Kong etc. will profit because the bank accounts of their local offshore vehicles (trusts, companies etc.) will be held in their jurisdictions under the secrecy law of that jurisdiction. Because Switzerland does not have any trust law, partnership law etc. it means that many bank accounts will be moved to the place where the trusts, companies etc. are domiciled respectively set up!

Zurich`s Higher Prosecution Office and Julius Baer arrogantly took this highly political case to the Federal Court of Switzerland in November 2016 hoping that the Swiss federal judges could bend and stretch the law again in order to prosecute Rudolf Elmer for violating Swiss banking secrecy. Now, this potential and crucial legal defeat might not only backfire on the Swiss finance industry but also on the entire Swiss offshore sector!

Swiss Parliament turned down the reform of the archaic tax law where tax evasion is only an offence and not a crime in December 2016. Therefore, international assistance in tax matters will be very limited. In addition, there is no whistleblower protection law in place in the private sector in Switzerland. All in order to protect the dubious Swiss business of certain international service providers (banks, tax lawyers, Big Fours etc.)!

Such a legal defeat for the Higher Prosecution Office of Zurich and Julius Baer would represent another Barbara Streisand Effect after WikiLeaks in 2008 and 2011.

More importantly, acquittal by the federal judges would not only be a disaster for the financial industry of Switzerland but also for the industries such as commodity trading, precious metal refining, insurance, food, the pharmaceutical industry etc. due to the fact that the money flow from those industries go through Swiss bank accounts and all too often through global offshore jurisdictions as well.

This goes to show how greed is the wrong motivator, not only in the banking industry but also this same greed underlying the actions of judges, the police, Julius Baer, and some of the Swiss media in giving a whistleblower a hard time and failing to act in the interest of the public, including the Swiss public.

Swiss prosecutors seek widening of secrecy law to bankers abroad

ZURICH/LONDON, Oct 31 (Reuters) – Swiss prosecutors are seeking a court ruling that would make it easier to convict whistleblowers for breaking the country’s bank secrecy law wherever they are in the world, legal documents show.

The Swiss Banking Act requires employees of Swiss-regulated banks to keep client information confidential, but a number of staff have leaked account details to foreign authorities in the past decade as Western governments crack down on tax evasion.

The documents, dated Nov. 21 2016, form the basis for an appeal by the prosecutors to the Swiss Federal Supreme Court against the acquittal last year of former private banker Rudolf Elmer on charges brought under the secrecy law.

Elmer, who headed the Cayman Islands office of Swiss private bank Julius Baer until he was dismissed in 2002, later sent documents revealing alleged tax evasion to the anti-secrecy group WikiLeaks and to tax authorities across the globe.

Zurich’s upper court ruled last year that the bank secrecy law did not apply to him as an employee of the Caribbean subsidiary, rather than of the parent bank in Zurich.

In their appeal, the prosecutors argue that if they cannot apply the law to people connected to Swiss banks outside the country, this deprives banking secrecy of its substance « with far-reaching consequences that cannot be accepted ».

Under Swiss law, no public hearing will be held but the documents show the Federal Supreme Court is considering the written appeal. On June 9, 2017, it invited Elmer’s side to make a written response, which his lawyer has since submitted. The court is expected to issue a written judgment next year.

A spokeswoman for Zurich’s senior prosecutors declined to comment beyond noting: « It’s up to the supreme court to decide on open questions. » Julius Baer also declined to comment.

« DEFAMED, CRIMINALISED AND ISOLATED »

Elmer was arrested twice in Switzerland, in 2005 and in 2011, and spent over seven months in investigative custody.

« I was defamed, criminalised and isolated, » he told Reuters, adding that the prosecutors were trying to set an example of what could happen to people who speak out and to their families. « The law in this case has been bent, stretched and, most importantly, abused by the judicial system of Zurich in order to protect its money-making machine. »

Switzerland is the world’s largest centre for overseas wealth management and in recent years has responded to international pressure, especially from the European Union and United States, for greater transparency.

This includes participation in the Automatic Exchange of Information programme, an agreement among developed economies which aims to ensure that offshore accounts are known to tax authorities in the account holders’ country of residence.

If the appeal is successful, the ruling would have no legal basis in most countries as they have no bank secrecy rules, so Switzerland could not extradite people from the likes of Britain or the United States on such charges. However, accused people would be vulnerable to arrest if they entered Switzerland or could face the stigma of being charged with a crime in their absence.

JAIL TERM

Some lawmakers in the EU are worried that the prosecutors’ move, if successful, may deter potential whistleblowers from supplying information on people accused of shifting their wealth to tax havens through accounts protected by secrecy laws.

In the appeal, prosecutors called for Elmer to receive a 36-month jail sentence, 24 of which would be suspended. Last year the Zurich upper court gave him a suspended sentence for forging documents and threatening Julius Baer following his dismissal. Elmer denies all charges.

One European lawmaker expressed concern over the lack of protection for whistleblowers in Switzerland, saying the aggressive prosecution of Elmer and others confirmed the country had not really changed its ways regarding tax crimes and money laundering.

« We’re going to be paying very close attention to this case, » said Ana Gomes, who co-chairs the European Parliament’s Committee of Inquiry into money laundering, tax avoidance and tax evasion. « We’ll be putting pressure on our authorities in the way they deal with Switzerland, and of course the way the Swiss deal with whistleblowers is extremely relevant for us. »

Swiss banks employ large numbers of people in London, as well as New York, and a British lawmaker said employees of bodies under UK jurisdiction cannot be subject to an extraterritorial law.

« This would be unacceptable, » John Mann, a Labour Party member of parliament’s Treasury Select Committee, told Reuters. « We need a position whereby people feel confident to whistle blow wherever they are based. There’s a danger this could have ramifications for the Swiss banks in Britain. »

SENDING A MESSAGE

The prosecutors argued that a legal precedent is needed to send a message to disgruntled people laid off from Swiss banking groups across the globe. Referring to Elmer in the appeal, they said: « A former banker, disappointed and embittered by his career, perceived himself to be in lawless territory … and caused great damage. »

The law, they argued, does not require that « the contractual activity be exercised under Swiss law » for Swiss bank secrecy to apply. Even contractors, lawyers and consultants who perform work for a Swiss bank internationally should fall under the obligation, they added.

Anti-corruption expert Mark Pieth disputed this in documents submitted by Elmer’s lawyer to the court. Should Switzerland extend the Banking Act beyond lenders regulated by the country’s FINMA financial watchdog or expand the definition of staff covered, parliament would have to change the law, Pieth said in a legal opinion seen by Reuters.

EROSION OF BANK SECRECY

Bank secrecy has been eroded since Switzerland agreed, beginning in 2008, to transfer details of thousands of UBS clients to U.S. tax authorities. In return, the U.S. government dropped charges against the bank for helping wealthy Americans to dodge taxes.

The scandal was set off by former UBS employee Bradley Birkenfeld, who in 2007 gave U.S. authorities information exposing the methods Swiss bankers used to help clients conceal assets.

In the aftermath, Swiss laws and bilateral treaties were amended to allow greater information-sharing on tax matters. At the same time, however, prison sentences for breaching bank secrecy were increased from a maximum of six months to up to five years.

Whistleblowers and new disclosure standards have proven costly for Swiss banks, which have suffered hundreds of billions of dollars in outflows as a result and become the subject of tax inquiries in a number of countries. Over a third of Swiss private banks have permanently closed.

An attempt to apply bank secrecy to the thousands of people working for Swiss bank subsidiaries abroad would be « way too broad », said Luc Thevenoz, who heads the University of Geneva’sCentre for Banking and Financial Law.

But if Elmer were found on appeal to have been employed directly by Julius Baer rather than its Caribbean subsidiary, it would be admissible to convict him regardless of where he was based.

« They want to persuade the court that Elmer was an employee of the Swiss entity, » Thevenoz said. « If they succeed, I have no problem with the conclusion that Elmer would have been bound by Swiss banking secrecy. If they fail, I don’t see how the court can convict him. »

Who are the criminals?Rudolf Elmer, Julius Baer, Prosecutors or even the Judges of Zurich?The agony and the ecstasy of whistleblowing in Switzerland

An account of actions against the whistleblower, his family and the citizen of Switzerland

This document (in English) explains the scope of administrative work performed by the judicial system of Zurich, which now moves in an astronomical level. As of today, more than 100 six-centimeter thick binders have been compiled on the basis of a trial which has lasted, as of today, for a period for more than 12 years. There have been 1,741 pages of indictments, judgments, pleadings and expert reports published (this does not include the number of pages of all interrogation protocols, legal orders, supplements, evidence, etc.), 48 prosecutorial interrogations of Rudolf Elmer by public prosecutors, and 5 judicial coercive actions. The costs of which are now largely borne by the citizen and taxpayers. Bank Julius Baer & Co. AG, Zurich and the General Counsel of the Julius Baer Group, attorney Christoph Hiestand, are the sources of his misrepresentation on his interrogation on August 18th, 2008 where Christoph Hiestand lied. Despite Mr. Hiestand’s manipulative behavior and deceptions in the court proceedings (attachments), he will not be held responsible by the judicial system of the state of Zurich.

In particular, the principle of the Swiss Federal Constitution, article 8 states that, « All are equal before the law ». However, this principle has not been followed by the prosecution office and the judges in the Causa Elmer. Bank Julius Baer & Co. Ltd., Zurich …… the link to the document (in English)

The pressure made by the Prosecutor and Judges on a child on top of it not protecting the child from the stalkers and private detectives by the Police and by the judicial system of Zurich escalated to a point which is simply chocking and disgusting but demonstrates in my view the revenge taken by these powerful bodies of Switzerland on a whistleblower and his family!Her the link to the document

Whistleblower Protection in Switzerland is a « NO-GO » due to the fact that the financial industry and particularly the private sector would loose so much dubious business or to be blunt PROFIT !!! That is simply the truth and the driving force behind all retaliation against truth tellers within Switzerland!

WELTWOCHE stated that Rudolf Elmer provided data to Neo-Nazis and implied that he is an anti-semitist. However, this is definitely not true because I have made many wonderful jewish friends and to be crystal clear also many of them (Ex-US-Senator Carl Levin, both my US lawyers etc.) are strong and helpful supporters in my fight against the abusive practice not only of Julius Baer but also of certain media like WELTWOCHE and part of the Swiss legal system.

As a matter of fact I was trained by great jewish people like Hans J. Baer (known for his bold statements « Swiss Bank Secrecy makes us fat and impotent » or « the bankers lack the grace when stealing », Terry Murphy etc. and they taught me not only banking but also human relationships, living with the truth and that the truth will always win, how to defend tooth and nail and fight for your rights even if the opponents try to destroy you and your family as it has been happening in the Causa Elmer for more than 15 years.

The Swiss Press is now picking up and even comments comprehensively on the abusive practice of the two journalists ALEX BAUR und the owner of the newspaper and Swiss Parliamentarian ROGER KOEPPEL. It is an eye-opener to read how WELTWOCHE tries to play down the fact that they have lost again (already in 2012 AZ Media) against a whistleblower.

Join more than 100 campaigners from 20 countries across Europe, and show your support for the whistleblowers Antoine Deltour and Raphaël Halet, as well as journalist, Edouard Perrin, who helped expose the LuxLeaks scandal.

Thanks to the LuxLeaks scandal, we know that the Luxembourg government signed hundreds of secret tax rulings – also known as ‘sweetheart-deals’, which were brokered by PwC and allowed corporations to avoid taxes in the billion Euro scale. In total, the revelations, brought to light the secret tax arrangements of 340 corporations, which enabled them to lower their tax payments, in some cases to less than 1%.

These men should be praised, not pushed! Join the civil society campaign action to show our support for them, as they face trial in Luxembourg. Raphaël Halet Edouard Perrin Antoine Deltour Programme

14.30-15.30 (Buy your own lunch on the way to Cité Judiciaire Speakers Action) Flexible Participants can go and watch the court-case (limited space!) or come back to Rotondes (4 Rue de la Rotonde) where movies will be screened (FR and ENG) about Antoine Deltour and Raphaël Halet

The events are organized by a coalition of civil society organizations, including CCFD-Terre Solidaire, Attac, Oxfam, ActionAid, Tax Justice Europe and the support committees of the defendants.

This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of the organizers and can in no way be taken to reflect the views of the donor.

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CAMPAIGNERS FROM 20 COUNTRIES WILL TRAVEL TO LUXEMBOURG TO SUPPORT LUXLEAKS ‘HEROES’

(Tuesday December 6 2016)

More than one hundred campaigners from 20 countries across Europe will be in Luxembourg to call for the protection of whistleblowers when the men who exposed the LuxLeaks scandal appear in court again next week.

On 12 December, former PWC employees Antoine Deltour and Raphaël Halet, and journalist Edouard Perrin, will return to court after the verdicts of their initial trial earlier this year were appealed.

Activists from across Europe will demonstrate outside the court to show their support for the defendants. They will call on governments across the EU to protect whistleblowers and make multinational companies publish where they do business and what they pay in tax.

Tove Ryding, Tax justice Coordinator at the European Network on Debt and Development (Eurodad), said:

“These three men have the support of people from numerous countries across Europe who will all gather to show their support for their actions. The original sentences of Mr Deltour and Mr Halet were a total disgrace, and we want this injustice to stop. You shouldn’t have to go to court for exposing the fact that that multinational corporations are dodging taxes.

“These men deserve praise, not punishment. The information revealed in the LuxLeaks scandal should never have been secret in the first place, and has been praised by many political leaders.”

In 2014, all three men helped expose the secret sweetheart deals signed by the Luxembourg government that allowed numerous multinational corporations to reduce their tax bills dramatically, in some cases to less than 1%.

About the trial: On 23 June 2016, a court in Luxembourg sentenced both Antoine Deltour to a 12 month suspended prison sentence and a €1500 fine, and Raphaël Halet to a nine month suspended prison sentence and a €1000 fine. Both have appealed their convictions. The journalist Edouard Perrin was acquitted, but the decision was appealed by the public prosecutor in Luxembourg. At the start of the trial, prosecutors asked for 18-month prison sentences for both whistleblowers and a fine for Perrin.

The Luxleaks revelations: Antoine Deltour and Raphaël Halet were former employees of ‘Big Four’ accountancy firm PwC who exposed hundreds of secret Luxembourg tax rulings – also known as ‘sweetheart-deals’, which were brokered by PwC and allowed corporations to avoid taxes in the billion Euro scale. In total, the revelations, which became known as LuxLeaks, brought to light the secret tax arrangements of 340 corporations, which enabled them to lower their tax payments, in some cases to less than 1%.

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International Anti-Corruption Day 2016

Today is International Anti-Corruption Day, a day to reflect on how corruption continues to undermine our hopes for a better society, but also to reflect on the ways that we can make a difference in the global fight against corruption.

Ultimately, change will come from thousands of small acts of bravery and integrity, and for this reason we highlight today the inspiring story of a young Slovak official, Zuzana Hlávková, who last month blew the whistle on some very suspicious use of public money as part of the Slovak Presidency of the EU. You can read her story in an exclusive interview on our new website.

We need more people like Zuzana to speak up. For that reason, we are calling on the European Commission to bring forward legislation that would provide a minimum level of protection for whistleblowers all around Europe. This will also ensure that people like Antoine Deltour and journalists like Rafaël Halet are not prosecuted and persecuted for actions that are in all of our interests. Deltour and Halet’s case is back in court in Luxembourg on Monday.

Tax Justice campaigners today condemned the punishment of Antoine Deltour and Raphaël Halet – two whistleblowers who were instrumental in exposing the infamous ‘Luxleaks’ scandal.

Mr Deltour was given a 12 month suspended prison sentence and a €1500 fine. Mr Halet was given a 9 month suspended prison sentence and a €1000 fine. French journalist Edouard Perrin was acquitted.

All three men helped expose the secret sweetheart deals signed by the Luxembourg government that allowed numerous multinational corporations to reduce their tax bills dramatically, in some cases to less than 1%.

Tove Ryding, Tax justice Coordinator at the European Network on Debt and Development (Eurodad) said: “The sentences imposed on these men are a complete disgrace and an indictment of the system that has condemned them. They acted in the public interest and deserve thanks and protection from prosecution. They revealed the secret tax deals that allowed huge corporations to pay next to nothing to the public purse. These kind of deals mean both developed countries, and the poorest nations in the world, lose billions every year.

“This information should not have been secret in the first place. There is no reason why citizens should not be allowed to know where multinational corporations do their business and where they pay their taxes.”

More than 200,000 people have shown their support for Antoine Deltour through this online petition alone: https://www.change.org/p/support-antoine-deltour-luxleaks?lang=en-GB

Ryding said: “We are calling for protection for all whistleblowers so that what happened to these three men today can never happen again. We also believe it is about time for the politicians to make multinational corporations publish the numbers showing where they make their profits and where they pay their taxes.”